GET UP, STAND UP:

Lessons Learned from

Student Activism in

School Year 2017-18Onik’a Gilliam, Helsell Fetterman LLP

With contribution from Matt Levinson, University Prep, Seattle, WA

(Protest Song) Topics for Today

• What’s Going On?

• The Times They Are a Changin’

• Give Peace a Chance

• Should [they] stay or should [they] go?

• Fight The Power

• We Shall Overcome

What’s Goin’ On

--Marvin Gaye

Parkland Shootings

On February 14, 2017, 17 people were shot and killed by a student at Marjory Stoneman Douglas High School in Parkland, FL.

Although there had been a recorded 13 school shooting incidents in the nation in the 12 months before, this event galvanized students and caused a firestorm of student activism.

Police Shootings and

Colin Kaepernick

August 2016, Colin Kaepernick started

sitting then moved to kneeling during the

national anthem in protest of, in his

words, “systemic racism and police

brutality.” Other NFL players followed.

At the time, media was inundated with

reports of high profile killings of black men

and women by police officers.

The Times They

Are A Changin’

--Bob Dylan

What a School Should Consider When

Deciding Whether to Support Activity

• Is fostering student expression and autonomy in this way generally in keeping with the culture and values of school? • Are you being consistent? “They're always

like, 'You can always speak your mind and stuff,’ she said of school officials. “And then when we do it, we're always getting in trouble.”—Student suspended for walking out

• Head of School note: “Lean on the mission and use it as a guide to inform actions and decisions”

• What about when school’s culture and values don't support the subject or message of the intended expression? • National Walkout for stricter gun control laws v. walkouts in

support of 2nd Amendment

• “himtoo” march in support of men falsely accused of sexual assault and harassment v. Metoo and pink hat marches

• Look to your student population, age appropriateness, and size; staffing needs, etc. • A walkout by Special needs students would require greater

ratio of staff to student

• K-5 v. MS v. HS require different levels of oversight

• Determine how you would record the activity in attendance records? Does discipline determination depend on length of time of protest/subject/number of students participating/who?

On March 14, 2018, Justin Blackman, a 16 year-old student

At Wilson Preparatory Academy in Goldsboro, NC

The only one of 700 students to Walkout

He walked out of his Spanish class without threat of discipline

And into 15 minutes of Youtube fame

Rosa Rodriguez, a 15 year-old student at Sayreville HS in NJ

Received one day of out-of-school suspension

for being the only one at her HS to Walkout on March 14, 2018

Give Peace A Chance

--John Lennon

So You Have Decided to Support

the Expression, Now What?

• Management--will there be staff assigned, will it be on or off campus, duration of time, etc.? • Head of School Note: “Support student agency

with safety always at the forefront”

• How much support is too much? i.e. When does this become a "school" event?• Check with carrier as to their opinion of what

constitutes "school event". • Any guidance/exclusions?

• What about staff who do or don't participate as directed on personal objection grounds--discipline? Alternative work-related activity?

• Mitigating risks and liability—Advance Notice of action and plan to parents and community. • Written consent?

• Should you try to obtain a waiver?

• Do parents sign student out?

• What about those students who do not obtain permission or whose parents explicitly object? Age minimum for consent?

• Are you making provisions for all students to participate and to NOT participate? There should be program-related activities for students electing not to participate that does not reward non-participation.

Lessons from an Head of School

April 2018, National Walkout

• Students planned on-campus walkout with some to walkout and then join other Seattle-area HS students at UW campus

• Attendance taken as normal in the AM, and immediately after the walkout at 10:20• Those whose parents provided advanced

permission to go to UW were allowed to leave campus and marked excused (HS only)

• Those who were absent and unaccounted for were reported with regular attendance protocol

Fight the Power

--Public Enemy

Risks from not supporting the

Student’s expression

• School Community Response

• Student Management--discipline for walking out?

• Should be no greater than for any other absence

• Are any program-related activities scheduled to occur during walkout?

• Are you going to afford makeup opportunities to lessen punitive aspect?

• What about staff who want to walkout with students?

Kneeling During the Anthem

• CA federal court 12/2017 has ruled that

public schools cannot require standing

for anthem.

• Private/Independent schools can forge

their own path.

• Two private schools have responded

differently to their students’ desire to

kneel.

Capital Christian Academy in Prince George’s County, MD.

All players kneel before each game during season 10/2018

School itself is all African-American/ Community is 63% African-American

Victory & Praise Christian Academy, Crosby, TX

Two Black players were immediately expelled from team by White coach for raising fist and kneeling in October 2017.

School is home-school based; 7% Black and 57% White

• Know your community. Will they be supportive of the student expression? Or will there be backlash directed at administration and/or students? Having an accurate pulse on your community can prepare you for how community will react to administration’s reaction.

• Because of intersectionality with protected classes (e.g. race, gender, sexual orientation), be cautious of punitive measures that could subject you to discrimination claim (if federal funding or state anti-discrimination law applies)

Should [They] Stay or

Should [They] Go?

--The Clash

Risks from Walkouts

• Personal Injuries;

• Exposure to Third-Party Bad Actors (access to and by people who are not under school control while school is in loco parentis);

• Elopement (student leaving campus and walkout to engage in other activity);

• Negligence (legal liability and the reasonable anticipation of risks).

Parkland, TX Middle School Student Jonathan Benko was fatally hit by truck when crossing

freeway during elopement from school on same day as a walkout April 2018

Texas Accidental Death, April 2018

• National Walkout on 19th anniversary of Columbine school shootings

• Event was not endorsed or promoted by the school district, but they sought to anticipate and mitigate risks by staffing and implementing safety plan

• 1400 students at Parkland Middle School

• Admin designated school football field as place for gathering and moment of silence

• Additional supervision was placed at front and rear of school, but not at East side egress

• Jonathon was part of 20-22 kids who left field to leave campus and cross freeway.

• About 400 students participated in walkout at Parkland.

• Nine staffers watched students on the field for 15 minutes before they returned to class

“You'll always have at least a group of students (who use) an event like a national walkout day as an excuse to take a break from the rigor of learning.” YSD Superintendent, in statement denying that the district endorsed, sponsored, or promoted the walkout.

• What could the school have reasonably anticipated?

• Given that knowledge, was it reasonable to leave the East side egress unsupervised?

• Could they reasonably anticipate elopement from students generally, and these students in particular?

• When was he discovered missing? And when was that in relation to end of gathering? Could they have prevented the harm if there was a re-entry and attendance plan?• Head of School Note: Clear and quick attendance

procedures

We Shall Overcome

--Pete Seeger

Action Items

• Adopt a policy outlining Standards for school-sanctioned expression.

• Reasonable limits on expression• What if students want to walk out every week

on Friday at 2pm?

• During testing?

• What if subject or message is not in keeping with mission or is offensive to school community? Nondiscrimination

• Who has ultimate discretion?

Action Items from an Head of

School

• Debrief with students—students are

eager to do something and act in the

face of inequities, but do not know to

organize.

• Integrate program and curriculum to

events—embed in civics or history class

• Offer context, guidance, and resources

to families for at-home discussions

Thank you for your attention

• Questions? Comments?

• DISCLAIMER: Please remember that

this presentation is for educational and

discussion purposes, and does not

constitute legal advice.

**Onik’a**